The Hindu : Section 21 of POTA is unconstitutional: Vaiko

Online edition of India's National Newspaper
Tuesday, Dec 10, 2002

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Section 21 of POTA is unconstitutional: Vaiko

By J. Venkatesan

NEW DELHI DEC. 9. The scope of Section 21 of POTA was wide, affecting the right to freedom of speech and expression guaranteed under Article 19 of the Constitution, senior counsel, Anil Divan, appearing for the MDMK leader, Vaiko, said in the Supreme Court.

Counsel submitted that Mr. Vaiko was arrested on July 11 for making a statement at a public meeting in support of the LTTE identical to what he had stated in Parliament.

As a leader of a political party, Mr. Vaiko had only explained that at a time when peace talks were going on in Sri Lanka with the LTTE, the Centre should reconsider its stand on the ban imposed on the LTTE. However, he was arrested invoking Section 21 of POTA, which required deeper interpretation, Mr. Divan said.

In his writ petition, filed from Vellore prison, Mr. Vaiko assailed Sec. 21 of POTA on the ground that it "restricts freedom of expression'' and hence "it is violative of Article 19 (1) (a) of the Constitution and therefore unconstitutional''. Further, this Section directly attempted to curtail citizens' freedom of speech and expression, and the right to assemble peacefully and without arms.

Mr. Vaiko pointed out that the turmoil in Sri Lanka resulted in the influx of Tamil refugees to India and any reference to the turmoil or mere verbal support to the cause of Tamils of Eelam could not be regarded as support to terrorism.

Recalling the peace talks going on in Sri Lanka between the Sri Lankan Government and the LTTE and the observance of a ceasefire, he said that at the instance of the Norwegian Government, negotiations and peace talks were held in Thailand, which had been welcomed by India, the United States, the United Kingdom, Germany, Japan, Canada, Australia and China.

He said it was not possible to refer the ethnic Tamil problem of Sri Lanka without making a mention about the LTTE, which had emerged as the sole representative of Tamils and which was supported by all the Tamil groups of the north and the east and also by the Tamils of Indian origin. He said substantial questions of law were involved in this case, viz. whether Sec. 21 (1) and (3) of POTA offended Article 19 (1) (a) and (c) of the Constitution?

"Does the mere expression of sympathy for Tamils in Sri Lanka for whom the LTTE has become the sole representative, recognised by the international community, amount to support to a terrorist organisation under POTA, thereby empowering the State of Tamil Nadu to curtail the petitioner's personal liberty?"

Whether by virtue of Article 105 of the Constitution, an MP was protected from criminal liability when he informed the public outside the Parliament as to what he said in Parliament during the deliberations. Contending that this provision was arbitrary, he sought a declaration that it was unconstitutional.

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